Assignment Judgment discussion

[Diana M]

You've not had anything back from the claimant's as yet to compare the documents to but you could have a look for default notices, notice of assignment, agreements etc which might give you a clue whether the claimants will be able to provide those documents and whether, when/if they do, they are likely to be complaint.

The Claimant/debt purchaser doesn't necessarily have access to all the information held by the original creditor (which would be in the OP's SAR response).

That access (or not) to historical information would be included in the conditions of the sale (Deeds).

This is one reason why my firm takes legal steps to establish exactly who reconstituted any documents disclosed and to see an unredacted copy of the Deed.

Di

[pt2537]

Re: Another Reston's thread

And of course one would want to see the unredacted assignment to be sure that the claimant has title to the debt, cases like PRA v Brunt show the Court will not be quick to assume title has passed without evidence.

As for reconstituting documents, i dont think ive seen a reconstitution to date that actually was accurate or complete, the devil is normally in the detail for example a number starting 01 when the agreement alleged to date from pre 1994 , we all know phone day changed the telephone dialing codes in 1995, or the registered addresses, as i showed in Harrison V Link the address for the insurance company was out of date by 4 years or so thanks to companies house records.

[Diana M]

Re: Another Reston's thread

And of course one would want to see the unredacted assignment to be sure that the claimant has title to the debt, cases like PRA v Brunt show the Court will not be quick to assume title has passed without evidence..

Indeed, as was the case in PRA v Diana Mayhew

PRA GROUP (UK) LIMITED v DIANA MAYHEW – WIN

‘“RECONSTITUTED AGREEMENT” – IRREDEEMABLY UNENFORCEABLE”
“UNREDACTED DEEDS OF ASSIGNMENT – NO ASSIGMENT PROVED”

So, held Recorder Bellamy in PRA Group (UK) Limited v Mayhew at Central London County Court on 22nd March 2017, at the end of a 3 day multi track trial, when dismissing PRA’s claim against our client.

Stale debts sued for on the back of 2 ‘reconstituted’ MBNA credit card agreements (May 1999 and October 2000) were held irredeemably unenforceable under CCA 1974. The evidence of an honest witness was preferred to that of so called “reconstituted agreements”.


After 3 days of close forensic examination of, and legal argument about, evidence and documents from both PRA and MBNA stating that our client’s specific debt had been assigned, the court held that no assignment had been proved.


Efforts, over many months, in earlier cases to force PRA into disclosure of un-redacted deeds and deep and sustained forensic challenge to the provenance of documents needed to prove regulatory compliance, finally drew back the veil. The reality behind bulk debt purchasing was revealed.


This decision shows that just saying an agreement is enforceable and producing a “reconstituted” copy does not prove that it is enforceable. Just saying an agreement has been assigned and producing a notice saying it has been assigned does not prove legal assignment.


Debt purchasers need to provide proof. If that means the pitifully few pence in the pound they pay for stale debts will increase because banks will now have to start keeping original evidence complying with regulatory consumer protection measures, it is hard to imagine many tears being shed, outside the City of London.

Di (aka Diana Mayhew )

[pt2537]

Re: Another Reston's thread

Indeed, as was the case in PRA v Diana Mayhew




Di (aka Diana Mayhew )

Isnt it a shame though that you dont have the judgment for that case, it would undoubtedly help others even though it is not a High Court ruling it would give some guidance

Heres the Brunt ruling

HER HONOUR JUDGE CLARKE

1. This is a claim issued originally by Aktiv Kapital Portfolio AS, Aug branch (“Aktiv”) on 24^th February 2014. It is a debt claim in the sum of £8,769.65. That was defended and it was originally allocated to the small claims track. There has been a long history to this; an amended defence was put in shortly after allocation in October 2014, and there has been a reply. This matter was listed for trial in December 2014, where a hearing took place at which the Judge decided the issues were complex and reallocated the case to the fast track, relisting it for another date in April 2015.
2. The debt was assigned to the PRA Group (UK) Ltd by the original claimant in December 2014. Despite this, Aktiv seem to have continued to prosecute the claim and litigate the matter in its own name: making various applications to vacate trial; attending hearings; responding to applications by the defendant including to set aside Orders and vacate the trial in April 2015.
3. The trial was vacated and was relisted for trial on 2^nd July 2015. The day before the trial Aktiv gave the Defendant notice of the assignment of the debt from it to PRA Group (UK) Ltd (“PRA”). PRA Group Ltd made a successful application to be substituted as the claimant. The matter was vacated again and it has eventually ended up being listed before me here today.
4. I am effectively dealing with, as a preliminary issue, whether PRA as the current claimant has the right to pursue the debt. That requires me to examine the chain of title from the underlying debt which, it is not disputed, arises from a credit card agreement entered into between Mr Brunt, the defendant, and MBA Group (Europe) Bank Ltd (“MBNA”) back in 2009. The claimant’s case is as follows: (i) the debt arose under that agreement and MBNA was the original creditor. (ii) MBNA assigned the debt to Vardy Investments (Ireland) Ltd (“Vardy”), pursuant to an agreement dated 31^st July 2009. (iii) Vardy assigned the debt pursuant to Aktiv pursuant to an agreement dated 29^th February 2012 (the original claimant in these proceedings), and (iv) Aktiv assigned the debt to PRA, as I have already said, in December 2014.
5. I treat as preliminary issue the need to establish whether the debt, which is the subject of dispute, is in fact held in PRA by this chain of assignments, because it is for PRA as the current claimant to prove its claim to the civil standard, being the balance of probabilities.
6. If PRA cannot satisfy me on the balance of probabilities (the civil standard) that it holds the debt, then there is nothing else that needs looking into and the claim must fail. It is only if I am so satisfied that I need to go on to look at the very many other issues raised by the defendant, including those relating to the Consumer Credit Act. That is common ground.
7. I have had the benefit of very helpful skeleton arguments from both Mr Levy for the claimant, and Mr Brennan for the defendant, and I am grateful to both of them.
8. The claimant’s case is that the evidence before me is more than adequate to prove to the civil standard the three assignments from MBNA to Vardy, from Vardy to Aktiv and from Aktiv to the claimant, PRA.
9. Mr Levy relies as evidence of the first assignment by MBNA to Vardy on what he refers to as an agreement dated 31^st July 2009 (see page 367-371). In fact I do not have before me a copy of that agreement. The Claimant has chosen only to provide me with selected pages, namely: the cover sheet; the first page of the agreement which shows the parties, the date, the recitals, and the first few defined terms from ‘Account’ to ‘Applicable law’ (set out alphabetically); I have no further definitions applicable to this agreement, nor do I have clause 1, whatever that might be, nor the beginning of the clause 2. The next page I am given is on page 369 of my bundle, which is a page containing clauses 2.3, 2.4 and 2.5 of the agreement headed ‘Acceptance of offer to sell’, ‘Assignment of Receivables’, and ‘Further assurance and undertakings by seller’ respectively; I have been provided no further pages of the agreement, but I then have been provided with two signature pages showing that this agreement (if in fact those signature pages do relate to the agreement – I am going to assume they do) were signed from counterpart by Vardy and MBNA.
10. Mr Levy’s submission for the claimant are twofold: first that the fact that debts were assigned by MBNA to Vardy is proved by those pages of the document I have been provided; and secondly the fact that Mr Brunt’s account was one of the debts assigned to Vardy he says is confirmed by the witness statement of Miss Williamson (see page 138 of my bundle). Let me turn to that.
11. Miss Williamson describes herself in her witness statement as an ‘external account manager for the claimant’. The claimant, at the time when Miss Williamson filed this witness statement in December 2014, was Aktiv, not PRA. She says:
“I am employed by IND Ltd with authority to make this statement”.
There is nothing in that witness statement or in any other document before me to tell me what role IND Ltd play in this matter. Mr Levy tried to assist as best he could by saying that it was his understanding that IND Ltd was a company effectively acting as an agent for Aktiv, but of course he cannot give evidence of this and he concedes that. Miss Williamson in paragraph 3 of her witness statement says:
“I would mention I have no personal knowledge of the conduct of the account before the issue of this claim. I make this statement from information contained in the claimant’s records. The documents lodged with the Court speak for themselves”.
12. That is the basis of the provision of her evidence. I believe a Civil Evidence Act Notice was lodged in relation to her witness statement, on the basis that she had no personal knowledge of the underlying documents, she was just effectively presenting them.
13. In her witness statement in paragraph 8 she states:
“The loan was assigned by the original debt owner, MBNA to Vardy Investments (Ireland) Ltd, who then assigned the debt to the claimant. The claimant was assigned the debt on 29^th February. Notice of the Assignment in accordance with section 136 of the Law and Property Act 1925 has been sent to the defendant. The Notice of Assignment is exhibited”.
14. Mr Levy says the fact that I can be satisfied from the limited documentation provided, namely pages pulled out of the agreement between MBNA and Vardy of 31^st July 2009, that MBNA assigned debts to Vardy, and the fact that Miss Williamson has confirmed that the loan owed by Mr Brunt to MBNA was assigned to Vardy in paragraph 8 of her witness statement, is sufficient for me to be satisfied that Vardy did in fact become the assignee of the debt owed by Mr Brunt.
15. Mr Levy says that that is also consistent with the documents that can be seen at pages 372 and 373. Dealing with them in reverse order, the document at 373 is introduced into evidence by Mr Sidebottom (solicitor acting for Aktiv as the original claimant and for PRA as the substitute claimant), who, in his witness statement, describes it as a ‘reconstituted’ Notice of Assignment of the debt from MBNA to Vardy Investments, dated 29^th January 2010.
16. The document at page 372 is a document that is expressed to be from MBNA (it is on MBNA letterhead). It is signed by Ben Owen, Head of Collection Operations. It is not clear to whom it was being sent as it is addressed to “Dear Sir/Madam”, and it is undated. It says:
“We confirm the balance outstanding and the following account has now been assigned to Vardy Investments (Ireland) Ltd”.
It has an account number, Mr Brunt’s name, the beginning of his address, the account opening date, the assigned balance and credit card. It does not give a date of transfer or assignment, and it says:
“Vardy Investments now holds all legal rights and authorities”.
17. Mr Levy says that the Notice of Assignment given on page 373, and this undated letter on 372 is sufficient corroborating evidence for me to be satisfied that Mr Brunt’s debt owed to MBNA was properly transferred to Vardy on 31^st July 2009, by MBNA (Europe).
18. Mr Levy accepts that at the time of the signature of the agreement between MBNA and Vardy (31^st July 2009) no Default Notice appears to have been sent by MBNA to Mr Brunt. The Default Notice which the claimant relies on is dated 11^th January 2010, almost six months after the assignment (on the claimant’s case) of the debt to Vardy.
19. Mr Levy says that the assignment of Mr Brunt’s debt effected by the MBNA/Vardy contract on 31^st July 2009, could therefore only be an equitable assignment. It was not perfected under the Law of Property Act until the Default Notice was given on 11^th January 2010. That Default Notice required payment of a certain amount (about £1,200) towards a stated debt of £8,789.65 by 28^th January 2010. Mr Levy submits that once the Default Notice was served, and Notice of the Assignment from MBNA to Vardy was given on 29^th January 2010, the assignment became a legal assignment of the debt which entitled Vardy (had they chosen to do so) to take action to enforce the debt.
20. Let me deal with these submissions. There are a great number of difficulties that I can identify with the claimant’s case in relation to the first link in this chain of assignments. First, there is nothing before me which shows me that the debt owed by Mr Brunt to MBNA was assigned, pursuant to the agreement with Vardy. If I had the whole agreement before me, it is conceivable that I might have been able to satisfy myself on the balance of probabilities and make some finding in relation to it, but I do not. For example, I do not know whether the entire book of credit card debts of MBNA at that date existing was transferred to Vardy by this agreement. If that was the case (if that was visible from the agreement) I could perhaps have drawn the inference that therefore Mr Brunt’s debt was part of those assigned to Vardy. But I cannot.
21. What I do know and what I can glean from paragraphs 2.3, 2.4 and 2.5 of this agreement, which are the only operative clauses that the claimant has put in evidence, is that there is something which was defined as ‘Receivables’, and there is another defined term which is ‘Purchased Receivables’. I can infer, therefore, that the agreement only related to the purchase of the Purchased Receivables, not all of the Receivables. In any event, I have no definition of Receivables or Purchased Receivables, so I do not actually know what was purchased.
22. If the agreement defined Receivables or Purchased Receivables by reference to another document or data set which set out all the details of debts and the various customers who owed them (as I imagine it must have done), the details of that document have not been provided to me. Nothing can be put before me showing me that Mr Brunt’s debt was part of the Purchased Receivables under this agreement. But it is more complicated than that.
23. Clauses 2.3 and 2.4 of this agreement, which I do have in evidence before me, seems to put in place a procedure by which the ‘Seller’ can make ‘Offers’ to the ‘Buyer’ (again the definitions of these terms are not in evidence) to purchase certain ‘Receivables’. Whether those are additional to ones already transferred under the agreement, or whether nothing is transferred under the agreement but the procedure exists to effectively call down assignments under the terms of this agreement, I do not know. I would if I had the rest of the agreement, but it is not in evidence. Clause 2.3 requires the Buyer to accept such Offers, subject to the terms of this agreement, so there are clearly circumstances by which the Buyer can refuse to accept such Offers. As I do not have any other terms of this agreement I cannot know what those are.
24. It is not until such an Offer has been accepted, pursuant to clause 2.3, that clause 2.4 provides for all of the Seller’s right title and interest to that Purchased Receivable to pass to the Buyer (set out in Clause 2.4A). Again, without knowing what an Offer is; what terms of the agreement require the Buyer to accept the Offer; what the definition of a Purchased Receivable is (defined in Clause 2.4A to include Purchased Receivables under ‘Charged-off Accounts’ and other defined terms that I have not been given the definition for) it is impossible for me to understand what happened under this agreement and, in particular, what happened to Mr Brunt’s debt owed to MGNA under this agreement, if anything.
25. Of course none of this might matter if I had a witness statement from a credible witness from MBNA or Vardy stating that Mr Brunt’s debt was actually assigned pursuant to that agreement in a specified manner and date. I do not have such evidence. The evidence of Miss Williamson does not, in my judgment, come anywhere near that threshold, not least because she is employed by a third party company whose status in these proceedings is unclear, and who has interrogated documents held by neither MBNA nor Vardy but Aktiv. I have only certain pages of the agreement and those later documents.
26. Mr Levy says I should be able to infer from those parts of the agreement provided to me that Mr Brunt’s debt passed on the date of signature of the agreement, and therefore if that is the case, none of this information about Offers and Acceptance, and clauses 2.3 and 2.4 is even relevant. First, I do not accept that I can make such inference for the reasons given. Second, if clauses 2.3 and 2.4 have no relevance, why were they the only clauses provided to the court in evidence? Mr Levy told me that none of the other clauses of the agreement were relevant to me. I am afraid I beg to differ.
27. If, in fact Mr Brunt’s debt was not assigned to Vardy on signature of the MBNA/Vardy agreement in some tranche of initial Purchased Receivables, then it seems from my limited information that it would have had to have been assigned, if it was at all, following the acceptance and offer procedure described in clause 2.3 and clause 2.4. Perhaps that is why those clauses were provided to me. However, there is no documentation to evidence that happened. Mr Brunt’s debt must have appeared on some schedule somewhere to show that an offer was made in respect of his debt, and that it was accepted, and at that point the date would be known as to when the debt was equitably assignment (or if in fact that date was after the Default Notice maybe it was sufficient to be a legal assignment). It is impossible to know, I am being invited to speculate and I am unwilling to speculate.
28. There is nothing I can do with this agreement and the very limited evidence I have before me to be able to get anywhere near being satisfied on a balance of probabilities that Mr Brunt’s debt passed from MBNA to Vardy, pursuant to the agreement of 31^st July 2009, and I so find. To the extent that information exists which is capable of satisfying me, it is all information which PRA is capable of obtaining, because it is clear from the later agreement between Aktiv and PRA that PRA is entitled to call for information about the debts assigned to it and previous assignments. It is also clear from the agreement between Vardy and Aktiv that Aktiv could call for such information from Vardy; there is a chain going back down. However, it has not been provided.
29. It is for the claimant to prove that Mr Brunt’s debt owed to MBNA has been assigned up through the chain to the claimant. The Claimant has failed at the first link of the chain. In fact, had they been successful on the first link of the chain, i.e. showing that Mr Brunt’s debt was assigned from MBNA to Vardy, they have a much stronger case for showing me of the next link, i.e. that the debt was assigned from Vardy to Aktiv. Having said that, even in relation to that, there is no specific evidence provided by anybody who is in a position to know, or by any specific documentation, that Mr Brunt’s name is on a list of debts assigned by Vardy to Aktiv.
30. So although I am going to stop at the first link of the chain because I am satisfied that the claimant cannot satisfy me as to any initial assignment to Vardy, had I gone further down the chain I think the claimant would have found themselves with similar difficulties. I remind myself, as discussed with and accepted by, Mr Levy, that the agreement between Aktiv and Vardy that has been filed as evidence by the claimant is extremely heavily redacted. It looks like something released under the 30-year rule by one of the security services. The redactions are so heavy that they include a redaction of any evidence as to execution of the document. It is impossible to tell whether this document has been executed at all and there is no specific evidence elsewhere that could satisfy me that this agreement has in fact been properly executed. Mr Levy accepts this is a problem. I say it is a fatal one.
31. For those reasons I find that this claim must fail, and accordingly in will dismiss it.
End of judgment

[Diana M]

Re: Another Reston's thread

Isnt it a shame though that you dont have the judgment for that case, it would undoubtedly help others even though it is not a High Court ruling it would give some guidance

Who says I don't have my judgment ?

Di

[pt2537]

Re: Another Reston's thread

Who says I don't have my judgment ?

Di

Well if you do, then its pretty poor showing not to share it, isnt that what obtaining a judgment transcript is about? to use it to assist others.

[warwick65]

Re: Another Reston's thread

Hi PT
Was the Brunt case just county court- it looks as if it was , so persuasive and not binding?

It does look like a dogs dinner of an argument with a kind of 'trust me, I am a professional' type of argument . The fact the DN was not issued until 6 months or so after the NOA was sent does seem like a bit of an own goal.

[pt2537]

Re: Another Reston's thread

Hi PT
Was the Brunt case just county court- it looks as if it was , so persuasive and not binding?

It does look like a dogs dinner of an argument with a kind of 'trust me, I am a professional' type of argument . The fact the DN was not issued until 6 months or so after the NOA was sent does seem like a bit of an own goal.

Of course, its not a binding ruling but nonetheless persuasive, but the point is if we keep these judgments to ourselves how can others learn from them? I mean imagine if i had kept hold of Harrison v Link??? That case wasnt reported, it was a High Court decision so binding all the same, but it wasnt to be reported anywhere.

The Brunt case was a real mess, but a mess that many people have to deal with, ive seen the same issues as Brunt in a couple of other cases too.

- - - Updated - - -

Hi PT
Was the Brunt case just county court- it looks as if it was , so persuasive and not binding?

It does look like a dogs dinner of an argument with a kind of 'trust me, I am a professional' type of argument . The fact the DN was not issued until 6 months or so after the NOA was sent does seem like a bit of an own goal.

oh and the Judge is a respected Mercantile judge who regularly sits in the High Court, so while its County Court her ruling will be followed by other judges, as ive seen with Hoist v Davis, another judgment i shared.

[warwick65]

Re: Another Reston's thread

Hi PT

I was just asking about this case and if it was binding as it seems some judges can be a tad precious shall we say , Charitynjw mentioned a case they were involved with and of course the Judge who sat in the Frost case seemed to think the date on the DN ( or was it the day after) was ok for the date if service and if not is was not relevant.

[pt2537]

Re: Another Reston's thread

Hi PT

I was just asking about this case and if it was binding as it seems some judges can be a tad precious shall we say , Charitynjw mentioned a case they were involved with and of course the Judge who sat in the Frost case seemed to think the date on the DN ( or was it the day after) was ok for the date if service and if not is was not relevant.

In the Frost case, the biggest killer was the Defendant changing her evidence, what was said in a witness statement turned out to be false, which was why the judge found the Defendant to be an unreliable witness.

Frost also isnt binding, as it was a recorder in the County Court, but its exactly this reason why sharing judgments is a good idea as it allows people to see both sides of the coin.

[warwick65]

Re: Another Reston's thread

Hi PT
I seem to remember that when the Frost Judgement was around, no one on LB, AAD or CAG was willing to share it , somehow I found a copy several pages down on a google search . I used it mainly to show a certain person on Cag that his assertion of no signed agreement on pre 2007 agreements meant no CCJ was wrong. Oddly he is still saying the same to this day.

It is clearly an exception and not the rule and it is clear that the judge found Mrs Frost less than reliable. I do wonder though about data protection and who needs to give consent for a judgement to be published. Obviously once it is out there it can be spread, tampered with and abused even if it is reported.

In any event, publishing most judgments means little to the average punter, as you said on a thread recently, it is one thing quoting legislation, case law or previous cases in a defence or WS it is entirely different when you are questioned on them in court.

[pt2537]

Re: Another Reston's thread

Hi PT
I seem to remember that when the Frost Judgement was around, no one on LB, AAD or CAG was willing to share it , somehow I found a copy several pages down on a google search . I used it mainly to show a certain person on Cag that his assertion of no signed agreement on pre 2007 agreements meant no CCJ was wrong. Oddly he is still saying the same to this day.

It is clearly an exception and not the rule and it is clear that the judge found Mrs Frost less than reliable. I do wonder though about data protection and who needs to give consent for a judgement to be published. Obviously once it is out there it can be spread, tampered with and abused even if it is reported.

In any event, publishing most judgments means little to the average punter, as you said on a thread recently, it is one thing quoting legislation, case law or previous cases in a defence or WS it is entirely different when you are questioned on them in court.

Once a judgment is handed down its a public record. It is handed down in public open Court, where any member of the public can enter

And as for the Frost Judgment not being circulated, i never had a transcript of the Judgment, it was Restons who had it transcribed and it was Restons who shared it with other DCAs. Sorry, but that was out of my hands. However, i have shared every judgment i have ever had and i think it is wrong for people to try and keep judgments as some kind of "Trade Secret" nonsense.

[warwick65]

Re: Another Reston's thread

I'm glad you agree that capitalism is a bad thing and that true socialism should be the order of the day. Mind you, without capitalism you wouldn't have the job you have :-)

Night

[Diana M]

Re: Another Reston's thread

Well if you do, then its pretty poor showing not to share it, isnt that what obtaining a judgment transcript is about? to use it to assist others.

Have you considered whether I (as the Defendant in this case and not as an employee of my legal representatives) may have the right to my privacy?

I'm saddened by your personal attack on me

Di (aka Diana M a Litigation Executive at Joanna Connolly Solicitors)

[Diana M]

Re: Another Reston's thread

i think it is wrong for people to try and keep judgments as some kind of "Trade Secret" nonsense.

You are entitled to your own opinion.

Di